#### Charles Leyenberger et al. v. Thomas H. Rebanks, Jr., by Catharine G. Rebanks, his Next Friend.

1. Practice—Excessive Damages Not Assianed for Error.—Excessive damages must be assigned as a ground for a new trial in the motion for that purpose or it can not be assigned for error in the Appellate Court.

S. Verdict—Justified by the Evidence.—Where the verdict is justified by the evidence it will be sustained.

3. Contract—Performance Prevented.—Where a person engages in the service of another for a certain period, and is discharged without justifiable cause, he will be entitled to receive the wages he might have earned.

*442Memorandum.—Assumpsit for services. In the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Declaration, common counts; plea, general issue and affidavit of merits; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1894, and affirmed.

Opinion filed December 6, 1894.

Andrew L. Winters, attorney for appellants.

Charles B. Holden, attorney for appellee.

Mr. Presiding Justice Waterman

delivered the opinion oe the Court.

This is an action by an employe to recover wages that he might have earned and would have been payable to him had he not, as he alleged, been, without justifiable cause, discharged before the expiration of the period for which he was engaged.

We are unitedly of the opinion that the evidence justified the verdict of the jury, that the plaintiff was engaged for one year and that he did not accept or assent to his discharge.

It may be the case that the plaintiff was, under the evidence, entitled to not quite so large a sum as he obtained a judgment for. A majority of the court are of the opinion that it not having been assigned in the motion for a new trial that the damages awarded by the jury were excessive, we can not, if so disposed, set aside the judgment for such cause. Kenwood Bridge Co. v. Dunderdale, 50 Ill. App. 381; Giffert v. McGuern, 50 Ill. App. 387.

The judgment of the Circuit Court is affirmed.